6.  The applicant was born in 1970 and lives in Fagersta.
7.  On 13 August 2004 the applicant and her husband, X, arrived in Sweden and on 16 August 2004 they applied to the Migration Board (Migrationsverket) for asylum and residence permits. The applicant was interviewed on 4 October 2004 and 8 March 2005. She had no identity papers and could not prove her identity. She stated that she was born and grew up in Kabul, where her parents, one of her two brothers, an aunt and an uncle resided. Her other brother had left Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif. The applicant had attended school for twelve years in Kabul and had studied at the university.
8.  The applicant and her spouse also submitted that they had been persecuted since 1996 because X had been a politically active member of the communist party, leading to his arrest on two occasions. Following his second release they had moved to Kabul, but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him. The applicant submitted that she also had shown her political stance by acting as a teacher for women, which was not accepted by parts of the leading elite in Kabul. Therefore, they had fled the country. When they had left their home, they had stayed with her uncle in Mazar-e-Sharif and the latter had helped them finance their journey to Sweden by paying a smuggler 24,000 US Dollars. Lastly, X invoked his poor mental health, stating that he was suffering from anxiety, sleeplessness and aggressive behaviour.
9.  On 29 March 2005 the Migration Board rejected the couple's application. It first noted that the security situation in Afghanistan varied between different parts of the country but that it was better in Kabul than in other parts of the country. The Board then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within the communist party. Hence, it questioned the claim that his life would be endangered because of his membership of that party. The Board therefore found that neither X nor the applicant had shown that they had been persecuted in Afghanistan or that they would risk persecution upon return. Thus, even having regard to X's poor mental health, the Board found that there were no grounds on which to grant them leave to remain in Sweden.
10.  The applicant and her husband appealed against the decision to the then Aliens Appeal Board, which subsequently transmitted the case to the Migration Court (Migrationsdomstolen). The applicant maintained her claims and added that the threats against her and X stemmed from X's previous political activities and from her activities in educating women and that the authorities had not been able to protect them, not even in Kabul. The applicant further submitted that she had separated from X in June 2005, lived alone and intended to obtain a divorce although X opposed it. Due to this, she had been criticised by some of X's friends, been called a “bad woman” and some other Afghans had spread untrue rumours about her. By separating from X, she had broken with Afghan traditions which meant that she risked serious persecution if forced to return to her home country. In this respect, she pointed out that she would not be able to obtain a divorce in Afghanistan and that by trying to obtain a divorce in Sweden she had dishonoured both her own and X's family. Consequently, her own family had disowned her and she would risk reprisals from X's family. It would also be impossible for her to find work and, since she and X had no children, she would be a social outcast. She further mentioned that the punishment for adultery in Afghanistan was stoning. Lastly, she stated that she suffered from psychological problems and was in need of treatment in Sweden.
11.  The Migration Board contested the appeal and submitted, inter alia, that X had stated that his father had held a higher position than him in the party but that he had not been threatened. It further claimed that, having regard to X's poor mental health, it should be possible for the applicant to obtain a divorce. Moreover, it appeared that X would agree to a divorce. Lastly, it did not question that the applicant's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her.
12.  On 19 March 2007, after holding an oral hearing, the Migration Court rejected the appeal. It first considered that it had not been shown that X, on account of his previous political activities, would be of interest to any resistance groups in Afghanistan. It then observed that quite some time had passed since the applicant had taught women in her home country. Moreover, the court noted that the previous Taliban ban on education for women had been replaced by affirmative action for women and that the constitution stated that the State should actively support women's education. Therefore, the court found that the applicant had not demonstrated that she had a well-founded fear of persecution because of her previous work as a women's teacher. As concerned the applicant's personal life, the court observed that she had not formally divorced X although they had separated. In its view, nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with Afghan traditions. It further noted that the applicant had stated that she had not had an extramarital affair, for which reason there was no risk that she would be convicted of adultery and sentenced to death. In this respect, the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the Afghan authorities. Turning to her claim that she would lack a social network in Afghanistan, the court found that the applicant had not demonstrated that her family in Afghanistan had rejected her and, hence, she had a social network there. It further took into account that she was well-educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment. Therefore, and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain, the appeal was rejected.
13.  The minority of the court wanted to grant the applicant leave to remain in Sweden on the ground that, since she did not have any children and had separated from her husband, she had shown that she would risk degrading treatment upon return to her home country.
14.  The applicant appealed against the judgment to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 4 September 2007, refused leave to appeal. This decision was final and the applicant's deportation order thus became enforceable.
15.  On 27 October 2007 invoking new circumstances, the applicant lodged an application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.
16.  On 28 January 2008 the applicant lodged a new application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.
17.  In February 2008 the applicant petitioned the District Court (tingsrätten) of Västmanland for a divorce from X. The latter informed the District Court on 17 July 2008 that he opposed a divorce. The applicant submitted that she had separated from her husband in 2005 and only seen him once since then. Moreover, she intended to invoke the divorce as one of the grounds to stop her deportation.
18.  In a decision of 19 November 2008, the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in Sweden.
19.  In the meantime, on 17 October 2008, the applicant requested the Migration Board to re-evaluate her case and stop her deportation. As grounds for her request, she claimed that the situation in Kabul had worsened considerably since the Migration Board's previous decision. She further alleged that she now had a well-founded fear of persecution upon return to Afghanistan since she had started a relationship with a Swedish man. Thus, she had committed adultery and risked the death penalty in Afghanistan. She had not been in touch with her family since the summer of 2005.
20.  She also submitted a letter from the UNHCR Regional Office for the Baltic and Nordic Countries, dated 2 October 2008, which stated, inter alia, the following:
“UNHCR's views on the protection needs of Afghan female asylum-seekers are fully set forth in the UNHCR's Eligibility Guidelines for Assessing the International Protection needs of Afghan Asylum‑seekers. ... In the context of Afghanistan, UNHCR would like to draw to your attention to the fact that an assessment of a refugee claim of an Afghan female asylum-seeker, should take into account the specifically vulnerable situation in which Afghan women are found, including pressure from within families, communities, and by the public to conform [to] behaviour in accordance with particular codes of behaviour. In this regard, a separation and/or divorce effected in the country of asylum, may indicate adoption of a Westernised way of life and be perceived as, or actually transgressing, prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that Afghan female asylum-seekers' reliance for relative social, cultural and economic freedom is exclusively dependent on the existence of male protection (husband, father, brother or extended family member) and that lack of such networks may seriously undermine a returnee's personal physical, economic and emotional security.”
21.  On 24 October 2008 the Migration Board refused to reconsider the applicant's case as she had failed to invoke any new circumstances of importance. It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts. The Board also found that there were no impediments to the enforcement of the deportation order.
22.  The applicant appealed against the decision to the Migration Court, maintaining the grounds invoked before the Board and insisting that these were new circumstances of importance. On 4 December 2008 the court rejected the appeal, upholding the Board's decision and reasoning in full.
23.  On 21 January 2009 the Migration Court of Appeal refused leave to Appeal and, on 17 February 2009, the case was transferred to the Police Authority to enforce the deportation order.
24.  Finally, on 17 April 2009 the applicant lodged a third application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.
25.  On 28 April 2009 the applicant lodged the case with the Court and on 11 May 2009 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice
26.  In her observations of 4 November 2009 the applicant submitted that already before leaving Afghanistan, she had told her mother about her problems with her husband. In October 2005 the applicant had called home and told her mother that she and her husband had separated. The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband. She had then talked to her father who became furious and shouted that she brought dishonour to the family. The conversation had ended because the applicant ran out of money on her telephone card. The father had called her back the following day to try to persuade her to change her mind and talked about honour, shame and her disgracing the family. In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her. She was no longer his daughter. After the conversation, the applicant had called her uncles in Kabul and Mazar-e Sharif to have their support but they had both repeated the words of her father. That had been the last conversation between the applicant and her relatives.
27.  With the applicant's observations of 4 November 2009 she also enclosed a letter of 31 October 2009 “to whom it may concern” by a named Swedish man who confirmed having a relationship with the applicant. He stated, inter alia, that they had met for the first time in the autumn of 2007, that their relationship had started in February 2008 and that they had been living together in his apartment since April 2009.
28.  In reply the Government observed on 15 January 2010 that the facts now presented by the applicant in her observations were never submitted to the Swedish authorities in spite of the fact that these could be considered relevant to her claim for asylum. Notably, regarding the claim that the applicant and the said Swedish man have been living together since April 2009, the Government noted that the applicant has still not changed her registered mail address in Fagersta although her new residence is apparently far away.